Parkingeye Limited v Velindre University NHS Trust & Anor [2026] EWHC 1019 (TCC)

The first reported judgment on lifting an automatic suspension under the Procurement Act 2023 has been handed down.

HHJ Keyser KC, sitting as a Judge of the High Court in Cardiff, has refused two NHS bodies’ applications to lift the automatic suspension under section 101(1) of the Act. The reason matters as much as the result. The judge described the new statutory test as “substantively and not merely formally very different, in both its method and its effect, from the former test as found in regulation 96(2) of the Public Contracts Regulations 2015”.

The commercial scene

For unsuccessful bidders, the practical regime under the old Public Contracts Regulations 2015 was discouraging. Once proceedings were issued before the contract was entered into, the automatic suspension applied; but on the contracting authority’s application to lift it, the court applied an interim injunction analysis based on American Cyanamid. Adequacy of damages for the claimant tended to be decisive. The Government’s Green Paper of December 2020 recorded that around two thirds of hearings in 2017 went the contracting authority’s way. The Procurement Act 2023 replaces that test with a procurement-specific one in section 102(2). This is the first reported case to construe it.

The facts

Parkingeye is the incumbent provider of car park management services for Cardiff and Vale University Health Board. After a procurement run under the 2023 Act, Velindre University NHS Trust and Cardiff and Vale University Health Board (together the applicants) decided to award the new contract to National Parking Control Group Limited. Parkingeye issued proceedings during the statutory standstill period on 19 January 2026, challenging the award decision. After the applicants published an amended Contract Award Notice on 21 January 2026, Parkingeye issued a further, materially similar claim. The matters became claim numbers HT-2026-CDF-000003 and HT-2026-CDF-000004 in the TCC in Wales. The applicants applied on 19 March 2026 under section 102(2) to lift the automatic suspension imposed by section 101(1).

The legal argument

For the applicants, Mr Knibbe argued that the public interest in upholding lawful awards was already vindicated by the availability of post-contract damages, that those damages would also operate as a deterrent against future breaches of the 2023 Act, and that the suspension should therefore be lifted so the new contract could proceed. For Parkingeye, Mr Kosmin and Mr Jackson submitted that the new section 102(2) test was substantively different from the regulation 96(2) test, that the statutory public interest factors leaned towards keeping the suspension in place, that damages were not an adequate remedy, and that Parkingeye would suffer reputational and operational loss as the incumbent.

The judge’s reasoning

The judge held that section 102(2) imposes no default position, no presumption, and no priority among the matters it lists. The weight of each factor is for the court to decide on the facts of the particular case.

He then explained how the new test differs in substance from regulation 96(2). The interim injunction analysis no longer applies. Adequacy of damages, which was often decisive under the old test, is now only one matter among others. The ordering of factors in section 102(2), with the public interest listed first, emphasises that departure. The specific examples of public interest in section 102(2)(a) give clear guidance on how the court should treat that factor.

On the principle that contracts should be awarded lawfully, the judge rejected the applicants’ submission that post-contract damages exhaust this principle. If they did, the principle would have little or nothing to bring to interim remedies and would scarcely have been worth mentioning at all, let alone placing first. It recognises a public interest that, where the lawfulness of an award is disputed, the contract should not be awarded until the dispute is resolved.

On delay in supply of goods or services, the parenthetical examples in section 102(2)(a)(ii), of defence or security interests and the continuing provision of public services, indicate serious and possibly exceptional cases. They are not a general endorsement of contracting authorities acting on their commercial judgement as to where advantage lies. In any given case, the court must assess the weight of the public interest in the prompt delivery of additional or improved services on the evidence.

Pulling these strands together, the judge concluded that “the public interest will generally tend in favour of keeping the suspension in place, although on the facts of particular cases it may weigh differently”.

On adequacy of damages, the judge was not persuaded by Parkingeye’s case that damages would be inadequate. The respondent had several years of records under a substantially similar contract, and the court was well able to calculate damages even in imperfect circumstances. On reputational damage, the judge applied the principles summarised by Jefford J in MAK Systems Group Limited v Velindre University NHS Trust [2026] EWHC 8 (TCC) and held that Parkingeye had not advanced evidence to meet the high threshold required for an incumbent. Damages, in short, would likely be an adequate remedy. The point that matters is that adequacy was no longer determinative under section 102(2). Removal costs under the current contract were a contractual obligation, not a relevant loss. National Parking Control Group Limited was not joined and there was no evidence about its position, although delay was an inherent consequence of the statutory suspension. Parkingeye offered an undertaking in damages. Nothing in the facts displaced the public interest in keeping the suspension in place.

The decision

The applications to lift the suspension were refused. Parkingeye was required to give an undertaking in damages in the form found in standard orders for interim injunctions.

What this means for the industry

Contracting authorities running procurements under the 2023 Act should not assume applications to lift the automatic suspension will be decided on the same footing as under the 2015 Regulations. Section 102(2) creates no default position or presumption, but on the facts of this case the court treated the public interest factors as carrying considerable weight against the applicants. Authorities seeking to lift the suspension are likely to need to show another aspect of the public interest, or a sufficient private interest of third parties, capable of outweighing the public interest in lawful awards. Mere commercial advantages of a new contract will not be enough; the evidence will need to address delay in supply or other serious consequences of the kind contemplated by section 102(2)(a)(ii).

For unsuccessful bidders, the position has changed. The judgment indicates that claimants may no longer face the damages-led analysis that often determined applications under the 2015 Regulations. A claimant who issues during the standstill period on a properly pleaded procurement challenge can expect the suspension to be assessed under a test in which adequacy of damages is one factor among others. The price for keeping the suspension in place is likely to be the standard undertaking in damages.

Summary

• Parkingeye Ltd v Velindre University NHS Trust & Anor [2026] EWHC 1019 (TCC), HHJ Keyser KC sitting as a Judge of the High Court, judgment handed down 1 May 2026 in Cardiff.
• First judgment construing the test under section 102(2) of the Procurement Act 2023 for lifting an automatic suspension.
• Two NHS bodies, Velindre University NHS Trust and Cardiff and Vale University Health Board, sought to lift the suspension imposed when Parkingeye, the incumbent, challenged the award of a car park management contract to National Parking Control Group Limited.
• The judge held that the new section 102(2) test is substantively different from the former regulation 96(2) test.
• Adequacy of damages is now one factor among others. Section 102(2) imposes no default position; on the facts here, the public interest factors carried considerable weight in favour of keeping the suspension in place.
• Applications to lift the suspension refused. Undertaking in damages required from Parkingeye.